State v. Kelly

2024 Ohio 932

• Court: Ohio Court of Appeals
• Decided: March 14, 2024
• Docket: 2023AP100052 & 2023AP100053
• Status: Published

Opinion

[Cite as State v. Kelly, 2024-Ohio-932.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case Nos. 2023 AP 10 0052 CEDRICK KELLY : 2023 AP 10 0053 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the New Philadelphia Municipal Court, Case CRB500042 (A), (B) & (C) and 990077(A) & (B)

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 14, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MADISON MCWILLIAMS CEDRICK KELLY PRO SE Assistant Prosecutor 1440 3rd St. S.E. 150 East High Aavenue New Philadelphia, OH 44663 New Philadelphia, OH 44663 [Cite as State v. Kelly, 2024-Ohio-932.]

Gwin, P.J.

{¶1} Defendant-Appellant Cedrick Kelly [“Kelly”], pro se, appeals the October 5,

2023 decision of the New Philadelphia Municipal Court, Tuscarawas County, Ohio

denying his motion to seal records. Appellee, the State of Ohio did not file a brief.

Facts and Procedural History

{¶2} On or about June 29, 1999, Kelly was charged in New Philadelphia

Municipal Court Case No. 990077(A) & (B)1 with one count of sale or furnishing alcohol

to an underaged person, a misdemeanor of the first degree in violation of R.C. 4301.69(B)

and one count of underage consumption of alcohol, a misdemeanor of the first degree in

violation of R.C. 4301.632.2

{¶3} On February 9, 2001, the trial judge granted the state’s motion to dismiss

the furnishing alcohol to a minor case and Kelly pled no contest to the underage

consumption case, and was found guilty by the trial judge.

{¶4} On or about January 10, 2005, Kelly was charged in New Philadelphia

Municipal Court Case No CRB500042 (A), (B) & (C)3 with 2 counts of violation of a

protective order, misdemeanors of the first degree in violation of R.C. 2919.26 and one

count of resisting arrest, a misdemeanor of the second degree in violation of R.C.

2923.33(A).

{¶5} The trial judge granted the state’s motion to dismiss the two counts of

violation of a protective order in New Philadelphia Municipal Court Case Nos.

CRB500042(A) and (B) on July 5, 2005. On January 23, 2006, Kelly pled no contest and

1 5th Dist. Tuscarawas No. 2023 AP 10 0053 2 R.C. 4301.632, “Prohibitions; Persons under Twenty-one Years of Age” was repealed on Oct. 11,

2002. But see, R.C. 4301.631, “Prohibition; minors under eighteen years; low alcohol beverages.” 3 5th Dist. Tuscarawas No. 2023 AP 10 0052 Tuscarawas County, Case Nos. 2023 AP 10 0052 & 2023 AP 10 0053 3

was found guilty by the trial judge of resisting arrest in New Philadelphia Municipal Court

Case No CRB500042(C).

{¶6} On September 23, 2013, the trial court found that the final date of discharge

had not yet occurred, and overruled Kelly’s Motion to Seal the Records in these cases.

{¶7} On June 26, 2023, Kelly filed a motion to seal the records in New

Philadelphia Municipal Court Case No. 990077(A) & (B) and New Philadelphia Municipal

Court Case Nos. CRB500042 (A), (B) & (C).

{¶8} A hearing on Kelly’s motion was held before a magistrate on September 22,

20234. The magistrate noted that Kelly appeared pro se and an assistant prosecutor

appeared on behalf of the state. The magistrate further noted that the state did not file

any written objections to sealing nor did the prosecutor orally object at the hearing to the

sealing of the records.

{¶9} The magistrate found that one year had passed since Kelly’s final discharge

in both cases and that Kelly is eligible for consideration to seal the records pursuant to

R.C. 2953.32. The magistrate further found that Kelly had no criminal proceedings

pending against him at the time.

{¶10} After hearing the evidence, the magistrate recommended that Kelly’s

motion to seal the records be denied finding,

The Magistrate further finds that while both of these convictions are

more than ten years old, Defendant has had numerous other convictions as

recently as 2016 for possession and trafficking in cocaine. Defendant's

other convictions include, but are not limited to, falsification, multiple counts

4 A transcript of the hearing was not filed with the record in this case. Tuscarawas County, Case Nos. 2023 AP 10 0052 & 2023 AP 10 0053 4

of violating a protection order, operating a motor vehicle under the influence,

assault and passing bad checks.

{¶11} Based upon Defendant’s lengthy violent criminal history, the

Magistrate finds that the State’s legitimate interest in maintaining these records

outweighs Defendant’s interest in having these matters sealed.

{¶12} Therefore, the Magistrate recommends that Defendant’s Motion to

Seal the record of these convictions be denied.

{¶13} The trial judge after an independent review of the record, approved and

adopted the magistrate’s decision in full.

Assignment of Error

{¶14} Kelly raises one Assignment of Error,

{¶15} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DENYING APPELLANT'S MOTION TO SEAL AS ITS FINDING WAS UNREASONABLE

AND ARBITRARY BY NOT CONSIDERING THE APPELLANT'S REHABILITATION.”

Law and Analysis

Pro se Appellant

{¶16} We understand that Kelly has filed this appeal pro se. Nevertheless, “like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP–116, 2006–Ohio–

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007–T–0022, 2008–Ohio–2128, ¶ 11.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154, 2005–Ohio–6494, ¶ 4 (internal quotation omitted). Although in a pro se Tuscarawas County, Case Nos. 2023 AP 10 0052 & 2023 AP 10 0053 5

action the court allows latitude to the unrepresented defendant in the presentation of his

case, the court is not required to totally throw the Rules out the window. See, Wellington

v. Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d 554,

¶18. (A substantial disregard for the rules cannot be tolerated).

{¶17} A transcript of the hearing held before the magistrate was not filed with the

record in this case. Pursuant to App.R. 9(B), it is the appellant’s duty to file the transcript

or any parts of the transcript that are necessary for evaluating the trial court’s decision.

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). “This is

necessarily so because an appellant bears the burden of showing error by reference to

matters in the record.” Id. at 199, citing State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d

1355 (1978). Without the filing of a transcript (or a statement of the evidence or

proceedings under App.R. 9(C) or an agreed statement under App.R. 9(D)), this court

has nothing to pass upon and must presume the validity of the trial court’s proceedings

and affirm. Id. This means that “we must presume that the trial court acted with regularity

and did not abuse its discretion.” Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21,

520 N.E.2d 564 (1988).

Failure to file objections and transcript with the trial court

{¶18} Two procedural issues impede our consideration of Kelly’s appeal. First,

Kelly failed to file written objections to the magistrate’s decision. If there are no timely

objections filed, “the court may adopt a magistrate’s decision, unless it determines that

there is an error of law or other defect evident on the face of the magistrate’s decision.”

Civ.R. 53(D)(4)(c). Except for a claim of plain error, a party may not appeal a trial court’s

adoption of a magistrate’s factual finding or legal conclusion unless the party has first Tuscarawas County, Case Nos. 2023 AP 10 0052 & 2023 AP 10 0053 6

objected to that finding or conclusion in the trial court. State ex rel. Pallone v. Ohio Court

of Claims, 143 Ohio St.3d 493, 2015-Ohio-2003, 39 N.E.3d 1220, ¶11; See, also, State

ex rel. Neguse v. McIntosh, 161 Ohio St.3d 125, 2020-Ohio-3533, 161 N.E.3d 571, ¶9;

Lamp v. Lamp, 5th Dist. Muskingum No. CT2003-0054, 2004-Ohio-6262, 2004 WL

2674563; In re Lemon, 5th Dist. Stark No. 2002 CA 00098, 2002-Ohio-6263, 2002 WL

31546216. The doctrine of plain error is limited to exceptionally rare cases in which the

error, left unobjected to at the trial court, “rises to the level of challenging the legitimacy

of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679

N.E.2d 1099 (1997).

{¶19} Second, Kelly failed to file a transcript of the proceedings with the trial judge.

“[B]y failing to provide a transcript to the trial court when filing objections, that party waives

any appeal as to those findings other than claims of plain error. Civ.R. 53(D)(3)(b)(iv).”

State ex rel. Pallone v. Ohio Court of Claims, 143 Ohio St.3d 493, 2015-Ohio-2003, 39

N.E.3d 1220, ¶11. When a party objecting to a magistrate’s decision has failed to provide

the trial court with the evidence and documents by which the trial court could make a

finding independent of the report, the appellate court is precluded from considering the

transcript of the hearing submitted with the appellate record. State ex rel. Duncan v.

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 1995–Ohio–272; Oyler v. Oyler, 5th Dist.

Stark No. 2014CA00015, 2014-Ohio-3468, ¶27.

{¶20} In the case at bar, Kelly did not file objections to the magistrate’s decision

and did not file a transcript of the hearing before the magistrate in the trial court. Because

the trial judge did not consider the transcript of the hearing before the magistrate, we Tuscarawas County, Case Nos. 2023 AP 10 0052 & 2023 AP 10 0053 7

would not be able to consider the transcript of the hearing before the magistrate even if

Kelly had insured it was filed with the record on appeal. Id.

Issue for Appellate Review: Whether the trial judge’s decision to adopt the

magistrate’s recommendation was plain error.

{¶21} There is no dispute in this matter that Kelly is an eligible offender. Thus,

under R.C. 21953.32(D)(1) in effect at the time that Kelly filed his application to seal the

records the court was then required to (1) determine whether criminal proceedings were

pending against the applicant; (2) determine whether the applicant had been rehabilitated

to the satisfaction of the court; (3) consider the reasons presented by the prosecutor

against granting the application; and (4) weigh the interests of the applicant in having the

records pertaining to the applicant’s conviction sealed against the legitimate needs, if any,

of the government to maintain those records.

{¶22} The court denied Kelly’s motion to seal the records finding the state’s

legitimate interest in maintaining these records outweighs Kelly’s interest in having these

matters sealed due to his lengthy violent criminal history.

{¶23} It is the applicant’s burden to demonstrate legitimate reasons, as opposed

to a general privacy interest, why the records should not remain open to the public. State

v. J.D., 2013-Ohio-4706, 1 N.E.3d 434, ¶ 8 (8th Dist.), citing State v. Haney, 70 Ohio

App.3d 135, 590 N.E.2d 445 (10th Dist. 1991). Appellant’s burden is met by presenting

evidence or testimony supporting the application. The trial court must have evidence or

testimony upon which to base its decision to seal the record. State v. N.C., 9th Dist.

Summit No. 29775, 2022-Ohio-781, ¶ 11, citing State v. A.V., 9th Dist. Lorain No.

18CA011315, 2019-Ohio-1037, at ¶ 9. “Once this burden is met and those needs Tuscarawas County, Case Nos. 2023 AP 10 0052 & 2023 AP 10 0053 8

outweigh the legitimate interests of the state in maintaining the records, the application

should be freely granted.” Id., citing State v. Garry, 173 Ohio App.3d 168, 2007-Ohio-

4878, 877 N.E.2d 755 (1st Dist.).

{¶24} Pursuant to Civ.R. 53(D)(3)(b)(iv), Kelly’s failure to object to the magistrate’s

decision bars him from “assign[ing] as error on appeal the court’s adoption of any factual

finding or legal conclusion” of the magistrate. Accordingly, we limit our review to plain

error.” State ex rel. Hunley v. Dept. of Rehab. & Corr., 156 Ohio St.3d 354, 2019-Ohio-

933, 126 N.E.3d 1122, ¶ 5.

{¶25} In addition, we cannot consider the transcript from the hearing before the

magistrate because Kelly did not file it in the trial court to be consider when the trial court

reviewed the magistrate’s decision. “The lack of a transcript * * * precludes an assessment

of whether the evidence supports the trial court’s conclusions or if the judgment is against

the manifest weight of the evidence.” Reproductive Gynecology, Inc. v. Wu, 10th Dist. No.

22AP-141, 2023-Ohio-2557, ¶ 37.

{¶26} Therefore, to the extent that Kelly relies on evidence from the hearing

transcript which was not before the trial judge his argument must fail. State v. Ishmail, 54

Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500(1978), paragraph one of the syllabus (“A

reviewing court cannot add matter to the record before it, which was not a part of the trial

court’s proceedings, and then decide the appeal on the basis of the new matter.”); State

ex rel. Pallone v. Ohio Court of Claims, 143 Ohio St.3d 493, 2015-Ohio-2003, 39 N.E.3d

1220, ¶11 (“The fact that the party later supplies a statement under App.R. 9(C) is of no

consequence; the appellate court is still precluded from reviewing the factual findings... Tuscarawas County, Case Nos. 2023 AP 10 0052 & 2023 AP 10 0053 9

In plain terms, the court of appeals cannot consider evidence that the trial court did not

have when it made its decision.”) (citations omitted.)

{¶27} We find this is not the exceptionally rare case in which the error rises to the

level of challenging the legitimacy of the underlying judicial process itself. The

magistrate’s ruling filed October 5, 2023 contained the following caveat to the parties,

A party shall not assign as error on appeal the court's adoption of

any factual finding or legal conclusion, whether or not specifically

designated as a finding of fact or conclusion of law under Criminal Rule 19

(D)(3)(a)(ii), unless the party timely and specifically objects to the factual

finding or legal conclusion as required by Criminal Rule 19(D)(3)(b).

NOTICE: copies of this magistrate's decision have been mailed to

the parties or their counsel. Written objections to this magistrate's decision

must be filed within fourteen days of the filing date of this decision. The

objections must be specific and state with particularity the grounds of the

objection. If you object to a finding of fact, a copy of the transcript must be

provided to the court. (emphasis added).

{¶28} Kelly was advised of his duties in order to object to the magistrate’s

decision. He neither filed objections nor a transcript. Upon review, we do not find any

plain error regarding the trial judge’s adoption of the magistrate’s decision under the facts

of this case.

{¶29} Kelly’s sole Assignment of Error is overruled. Tuscarawas County, Case Nos. 2023 AP 10 0052 & 2023 AP 10 0053 10

{¶30} The judgment of the New Philadelphia Municipal Court, Tuscarawas

County, Ohio is affirmed.

By Gwin, P.J,

Hoffman, J., and

Wise, J., concur.